Rabiram Das vs Uma Kant Chuckerbutty

Ghose, J.—This was a suit for ejectment under sec. 49 of the Bengal Tenancy Act after a notice to quit alleged to have been given. The Court of first instance held that the notice had not been proved. The lower Appellate Court, however, without going into that question, has held that the Defendant, being an under-raiyat under the Plaintiff, who is a raiyat, cannot acquire a right of occupancy, and that he is, therefore, liable to be ejected; and further, that the suit itself might be regarded as a sufficient notice to the Defendant to quit. The learned vakil for the Defendant Appellant, has in the first instance contended before us that the Defendant is not an under-raiyat within the meaning of sec. 49 of the Bengal Tenancy Act, and he has further argued that, supposing the Defendant is an under-raiyat, he cannot be ejected unless after proper notice to quit as provided by the said section.

As regards the first question raised before us, we are clearly of opinion, having regard to the terms of the lease executed in favour of the Defendant, that he is an under-raiyat, and not a raiyat within the meaning of the Bengal Tenancy Act, and therefore he cannot acquire any right of occupancy in the land comprised in the suit. But, so far as the other question is concerned, it seems to us that the lower Appellate Court ought not to have disposed of this suit without coming to a finding whether the notice said to have been given was served upon the Defendant. We are unable to regard the suit itself as a notice.

Sec. 49 of the Bengal Tenancy Act provides that -- "An under-raiyat shall not be liable to be ejected by his landlord except (a) on the expiration of the terms of a written lease; (b) when holding otherwise than under a written lease, at the end of the agricultural year next following the year in which a notice to quit is served upon him by his landlord." With reference to this section, it has been contended by the Respondent that the case falls within clause (a) of the section and therefore no notice was necessary. If the suit had been brought within a reasonable time from the date when the terms of the written lease expired, and we may here mention that it expired so long ago as in 1284 F., we might well accept the view that has been put forward; but in the present case the Defendant has been holding over after the expiration of the term of the lease in 1284 for about 18 years, and it is almost impossible to imagine that he could have so hel(sic) without some understanding or other, express or implied, having come to between the parties concerned, that he, the Defendant, should hold over the land upon the old terms. In that view of the matter, the case falls within clause (b), namely, that the Defendant has been holding the land otherwise than under a written lease. That being so, he was entitled to a notice to quit before he could be ejected.

The learned Judge of the Court below, and so the learned vakil for the Respondent have referred to the case of Ram Lal Patak v. Denonath Patak I. L. R. 23 cal. 200 decided by a Division Bench of this Court as an authority for the proposition that the suit itself may be regarded as a sufficient notice. But having regard to the facts of that case, we do not think that it can be relied upon as an authority in this case, for, in that case the land was a piece of homestead land in regard to which the Bengal Tenancy Act could have no application: in the present case the land is agricultural, to which the Bengal Tenancy Act applies, and we must be guided by the provisions of that Act in deciding whether the Plaintiff is entitled to eject without a notice to quit as provided by clause (b) sec. 49 of the Act.

We are of opinion that the suit cannot be maintained without a notice to quit. The learned Judge, however, as has already been mentioned, has not come to any determination upon the question of notice. We accordingly set aside his decree, and send the case back for a finding upon that matter. If he holds that no notice to quit was served as provided in sec. 49 of the Act, the suit will be dismissed. If, on the contrary, he finds that a notice was served, the suit will be decreed. The costs will abide the result.

Appeal No. 1293 of 1896.--The judgment that we have just delivered in case No. 1280 equally applies to this case. But there is an additional question which arises in it, and that question is whether the father or the son has been in occupation of the land after the expiration of the terms of the lease. If the father has been in such occupation, and the notice has been served upon him, the suit has been rightly brought against him; but it otherwise, the suit cannot be maintained. The Judge must find this point one way or the other and decide the case accordingly.

Ameer Ali, J.

The learned pleader for the Respondent in this case contended that as the case falls within the provisions of clause (a), sec. 49 of the Bengal Tenancy Act, the view taken by the learned Judge on appeal that the suit itself was a notice, was well-founded. Without expressing any opinion as to the circumstances under which a suit would be a sufficient notice to a tenant who is sought to be ejected under sec. 49 of the Bengal Tenancy Act, I wish to observe that in this case the matter in my opinion does not come under clause (a) of sec. 49. No doubt the Defendant was let into occupation of this holding under a kabuliat for a year, but it is also clear that he has been holding the land for a number of years, and, as a consequence of his having been let in under a kabuliat, it may be taken in the absence of any evidence to the contrary that he has continued to hold under the same terms under which he was let in. But that does not amount to his holding being under a written lease which has expired within the meaning of clause (a), sec. 49. It clearly comes under clause (b) of that section, that is, a holding by an under-raiyat otherwise than under a written lease. No doubt the terms of the holding were the same as those under which he had been let in under a written lease. But he was not holding under any written lease and, therefore, under clause (b), he was not liable to be ejected without a proper notice to quit in accordance with the law. It has already been pointed out that the facts of the case upon which the District Judge has relied are not similar to those of the present case and, therefore, he was not right in holding that the suit itself was a sufficient notice. I therefore agree in remanding the case for finding on that point.